Ned Foley, Ruth Greenwood, David Niven, Dan Tokaji, and I filed this amicus brief today, exclusively in our personal capacities, arguing that the Ohio Ballot Board’s summary of Ohio’s anti-gerrymandering initiative is deeply misleading. While the initiative would be one of the country’s most potent safeguards against gerrymandering, the Board’s summary says that it would require the proposed commission to gerrymander. Here are some excerpts from the brief’s introduction:

Orwell himself would have trouble topping the efforts of the Ohio Ballot Board. Legally obligated to draft ballot language that “fairly and accurately” summarizes Issue 1—a proposed constitutional amendment that would curb partisan gerrymandering in Ohio—the Board instead adopted text telling voters that Issue 1 would itself constitute gerrymandering. According to the Board’s up-is-down summary, the amendment supposedly “[r]epeal[s] constitutional protections against gerrymandering.” Relators_034 (emphasis added). In fact, Issue 1 dramatically strengthens these safeguards. The Board’s summary also falsely accuses the amendment of “requir[ing]” the proposed commission “to gerrymander the boundaries of . . . districts to favor either of the two largest political parties.” Id. (emphasis added). The whole point of Issue 1 is actually to prevent gerrymandering by stopping self-interested politicians from drawing district lines and subjecting district maps to a partisan fairness requirement.

. . . First, while conceptions of gerrymandering abound, no common notion of this activity equates it with ensuring that parties’ legislative representation is congruent to their popular support. On some accounts, this kind of congruence is the antithesis of gerrymandering. At worst, from other perspectives, such congruence is orthogonal to the injury inflicted by gerrymandering.

Second, Ohio’s distinctive history establishes that, in this State, partisan gerrymandering can’t possibly mean correspondence between parties’ statewide seat shares and vote shares (“seat-vote correspondence”). This is because Ohio already has a state constitutional requirement that “[t]he statewide proportion of districts . . . favor[ing] each political party shall correspond closely to the statewide preferences of the voters.” Ohio Const. art. XI, § 6(B). This Court is intimately familiar with this requirement, having decided a series of cases about it just two years ago. In these cases, all of the Court’s members—both in the majority and dissenting—agreed that the requirement aims to thwart gerrymandering. No one voiced the Board’s preposterous position that the requirement compels gerrymandering.

Third, because the U.S. Supreme Court has commented extensively on the relationship between partisan gerrymandering and proportional representation, it’s important to set the record straight about what that Court has said. When a plurality of the Court recognized that gerrymandering could be unconstitutional, these justices held that a party’s disproportionally low representation is an element of the offense—just not enough, alone, to prove liability. Over the years, several justices stated that a district plan’s achievement of proportional representation is a valid defense to a charge that the plan is an unlawful gerrymander. And more recently, when the Court deemed partisan gerrymandering nonjusticiable, the majority asserted that plaintiffs challenging gerrymandering necessarily seek proportional representation. Proportional representation must be distinct from gerrymandering, then, since it would be nonsensical for gerrymandering’s foes to ask for a remedy of more gerrymandering.

This launch event for TrueViews will be held on Tuesday, September 3, from 11am – 12:15pm, both in-person and virtually. TrueViews is a new site I’ve been working on together with Justin De Benedictis-Kessner, Ruth Greenwood, and Chris Warshaw, funded by the Bloomberg Center for Cities at Harvard University. For the first time, TrueViews will make available public opinion data on many policies and at many geographic levels (from states to districts to zip codes). I’ll be saying more about TrueViews in the coming days, but for now, here’s the summary for the launch event. You can RSVP here.

Do candidates seeking political office know what their constituents think and care about? A new resource developed by Harvard Law School’s Election Law Clinic and supported by the Local Politics Lab at the Bloomberg Center for Cities at Harvard University provides new, granular data on public opinion in the United States. TrueViews can address misrepresentation and polarization by providing city leaders and other policymakers with precise insights into the policy preferences of their residents. The data platform can also bolster scholarly research on local politics.

TrueViews uses cutting-edge methodology to produce accurate estimates of public opinion in previously unavailable geographical snapshots, including by city or town, zip code, and even school district. Meet the faculty behind TrueViews as they discuss the use of state-, county-, and city-level public opinion data on key issues such as criminal justice, education, immigration, or taxes.

This is a guest post by Maureen O’Connor, Retired Chief Justice of the Ohio Supreme Court.

James Madison, in Federalist No. 10, warned us about the dangers of factions—groups that, driven by self-interest, work against the public good. 

“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community,” Madison wrote.

This threat of self-interested political factions treading on the constitution and the rule of law foretold by Madison is happening today in my home state of Ohio.

Secretary of State Frank LaRose, acting as the leader of a faction intent on preserving political power, has manipulated the ballot language for Issue 1, a redistricting reform amendment in Ohio that is on the ballot this Nov. 5. As chair of the Ohio Ballot Board, LaRose pushed through this misleading language on a slim 3-2 vote, using the power of his office not for the general public good but to advance his own private agenda.

As the former Chief Justice of the Ohio Supreme Court, I’ve dedicated much of my career to upholding the rule of law and ensuring that every citizen’s voice is heard. The election law community should take notice of the lawsuit filed by Citizens Not Politicians against the Ohio Ballot Board and LaRose challenging their illegal decision. This lawsuit is a fight for the future of fair elections in Ohio and it is a test of the checks and balances in our three-branch system of representative government. It could have broader implications for what self-interested politicians and their factions think they can get away with in the future.  

On August 19, 2024, Citizens Not Politicians, alongside dedicated Ohioans Cara Dillon and Annette Tucker Sutherland, filed an original action in the Ohio Supreme Court. The lawsuit challenges the misleading and illegal ballot language adopted by the Ohio Ballot Board for Issue 1. The Ballot Board’s action is a blatant abuse of power, designed to protect political interests rather than inform Ohio voters.

The Ohio Constitution and the Revised Code require that ballot language must be accurate, impartial, and not prejudicial. Unfortunately, the language approved by the Ballot Board violates these legal standards. It misrepresents the amendment’s provisions, falsely claiming, for example, that it would require gerrymandering to favor the two largest political parties. In reality, the amendment would do the opposite—banning partisan gerrymandering and ensuring fair representation for all Ohioans.

This lawsuit is not just about correcting these falsehoods. It’s about protecting our democracy from manipulation. It’s about ensuring that every voter has the information they need to make an informed decision at the ballot box. And it’s about holding those in power accountable when they attempt to undermine the rights of Ohioans to shape their government.

I urge those in the election law community both in Ohio and nationally to follow this case closely. The Ohio Supreme Court’s decision will have profound implications for the integrity of our elections. You can track the case by visiting the Ohio Supreme Court docket at [this link](https://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2024/1200). But don’t stop there. Share the news of this lawsuit with your networks. Talk to your friends, your family, your neighbors. Ohio’s future is on the line, and it’s up to all of us to defend it.

Madison’s solution to combating factions was in the constitution and the rule of law. “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.”

One cause of factions is gerrymandering, and the factions of politicians who benefit from gerrymandering in Ohio are doing everything in their power – legal or illegal – to stop this constitutional amendment that threatens their outsized, undeserved, and unconstitutional power and influence.   

This is not just a legal issue; it’s a moral one. The right to fair elections is fundamental to our democracy. As Ohioans, we must stand together against any attempt to subvert that right. Please, stay informed, stay engaged, and help spread the word about this critical fight for the future of our state that may have broader implications for the future of free and fair elections across the country.

I wrote this response to Joshua Kleinfeld and Stephen Sachs’s forthcoming article, “Give Parents the Vote.” The response will be published in the Notre Dame Law Review alongside Kleinfeld and Sachs’s article. Here’s the abstract:

Joshua Kleinfeld and Stephen Sachs make a significant contribution to the literature on children’s disenfranchisement by describing and defending parental proxy voting: empowering parents to vote on their children’s behalf. The authors’ democratic critique of the status quo is particularly persuasive. Children’s exclusion from the franchise indeed distorts public policies by omitting children’s preferences from the set that policymakers consider. However, Kleinfeld and Sachs’s proposal wouldn’t do enough to correct this distortion. This is because contemporary parents diverge politically from their children, holding, on average, substantially more conservative views. The proxy votes that parents cast for their children would thus often conflict with the children’s actual desires. Fortunately, there’s an alternative policy that would fix more of the bias caused by disenfranchising children: young adult proxy voting. Under this approach, children’s votes would be allocated to not their parents but rather young adults — the cohort of adults closest in age to children. Young adults, unlike parents, are highly politically similar to children. At present, for example, both young adults and children are quite liberal. So, to update Kleinfeld and Sachs’s thesis, if we want children “to be adequately represented at the polls, we should give [young adults] the vote.”

I wrote this report for Protect Democracy on the relationship between proportional representation and the Voting Rights Act. Here’s some of the introduction:

First, the report provides background information about these topics. In particular, PR can refer to either a certain kind of electoral system or rough equivalence between a group’s share of votes in a jurisdiction and its share of legislative seats. Second, the report discusses the legal vulnerability of PR systems under the VRA. In most cases — when these systems are working as expected — they create little risk of VRA liability because they represent minority voters at least as well as (often better than) single-member districts plausibly could. Third, the report comments on PR systems as potential remedies for VRA violations. PR systems (including related semi-PR approaches) have been adopted to cure racial vote dilution dozens of times — typically through settlements, and occasionally at the request of defendants.

Fourth, the report explores the emerging role of PR systems under state voting rights acts (SVRAs). Certain SVRAs explicitly or implicitly contemplate conversion to PR or semi-PR systems to remedy statutory violations. Certain SVRAs also abandon deference to defendants with respect to choices among remedies — a feature of VRA doctrine that has sometimes prevented the adoption of PR systems. Lastly, the report identifies potential federal and state reforms that could facilitate wider conversion to PR systems through voting rights litigation. Federally, the VRA could recognize these systems as available remedies and drop the requirement that minority populations be geographically compact. At the state level, SVRAs could not merely acknowledge the availability of these systems but also favor or even mandate their use over other options.

Caroline Walker has written this comment for the Harvard Law Review on the Eighth Circuit’s decision that no private right of action exists to enforce Section 2 of the Voting Rights Act. The comment explores whether plaintiffs might be able to use Section 1983 to enforce Section 2 instead.

Section 1983 enables private parties to enforce a federal statute that creates an individual right, even if the statute itself does not contain a private cause of action. An individual right is enforceable under § 1983 when (1) plaintiffs show that the statute’s text and structure reflect congressional intent to create an individual right and (2) the opposing party fails to show that the statute reflects congressional intent to foreclose § 1983 enforcement of that right. . . .

Under the Supreme Court’s guidance, section 2’s text creates an individual right. Section 2 protects against any “voting qualification . . . standard, practice, or procedure . . . result[ing] in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.” This provision contains “rights-creating” language with an “unmistakable focus on the benefited class” of citizens who hold the equal right to vote. That individual right does not disappear when the statute also “establish[es] who it is that must respect and honor the[] statutory right[].” . . .

Turning to the second prong of the § 1983 analysis, defendants are unlikely to rebut the presumption that section 2 voting rights are enforceable under § 1983. The presumption is rebutted only when “Congress ‘specifically foreclosed a remedy under § 1983.’” Specific foreclosure occurs only when the statute precludes § 1983 enforcement either explicitly or implicitly through “a ‘comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.’” Explicit foreclosure does not pose an issue here, because “[a]ny mention of . . . private remedies . . . is missing” from the VRA’s text, as the Eighth Circuit recognized. . . .

Section 1983 ensures that private individuals and groups can bring a cause of action to enforce their section 2 voting rights in the absence of any Attorney General action. Plaintiffs pleading § 1983 claims to enforce section 2 need only prove the same merits of a vote dilution or denial claim brought under section 2 itself. Section 1983 provides a viable mechanism for plaintiffs and advocates to continue fighting before the courts to protect equal voting rights against antidemocratic attacks.

Many (most?) racial gerrymandering cases have partisan as well as race-related objectives. Why did the plaintiffs sue in Alexander, the South Carolina case decided by the Court today? At least in part to try to get a second Democratic congressional district in the state. Similarly, what explains the Louisiana racial gerrymandering case whose ruling the Court stayed just last week? Again, at least partly, the (Republican) plaintiffs’ desire to stop the state from using a map with two Democratic districts.

In today’s decision in Alexander, the Court made it much more difficult for racial gerrymandering plaintiffs to achieve any partisan goals they might have. This is because the Court came close to requiring plaintiffs to submit an alternative map showing how the state could maintain its plan’s current partisan balance while fixing the alleged racial gerrymandering. The Court discounted the thousands of maps created by the plaintiffs’ experts because none of them “achieved the legislature’s partisan goal”—a Republican District 1—“while including a higher [Black voting-age population] in District 1.” The Court also held that, in the future, “trial courts should draw an adverse inference from a plaintiff’s failure to submit” an alternative map. “A plaintiff’s failure to submit an alternative map should be interpreted . . . as an implicit concession that the plaintiff cannot draw a map that undermines the legislature’s defense that the districting lines were” drawn for partisan, not racial, reasons.

After today’s decision, potential litigants with partisan aims will have much less reason to bring racial gerrymandering claims. The alternative map they’re now (essentially) required to produce is an instruction manual for the state explaining how it can remedy the violation alleged by the plaintiffs without disturbing its plan’s partisan performance. Why should partisan litigants bother suing when, to avoid a likely fatal “adverse inference” against them, they have to demonstrate to the state how to avoid any partisan consequences as a result of the suit?

Importantly, today’s decision similarly constrains Democratic and Republican litigants. I mentioned above that Alexander may have been brought, in part, to obtain another Democratic district, while Republican gain was a likely motive for the ongoing Louisiana case. A look at the whole universe of racial gerrymandering cases confirms that both parties see them, at least partly, as vehicles for pursuing partisan advantage. In the 1990s, the original cases of this kind were almost uniformly brought by white Republican plaintiffs angry about plans that simultaneously benefited Democrats and increased minority representation. In the 2010s, minority Democratic plaintiffs challenged aggressive Republican gerrymanders that used race in ham-handed, legally indefensible, ways to comply with the Voting Rights Act. This cycle, beyond the South Carolina and Louisiana cases, there have been prominent racial gerrymandering suits seeking (in part) more Democratic districts in Alabama and Texas and (also in part) more Republican districts in Michigan and Wisconsin.

What’s the problem, then, with a decision that focuses racial gerrymandering cases on racial, not partisan, grievances? The problem, in a word, is Rucho. While the Court held that partisan gerrymandering is nonjusticiable in Rucho, severe partisan gerrymandering remains unconstitutional—even according to Rucho—and staggeringly undemocratic. So it’s understandable that parties victimized by partisan gerrymandering want to go to court to correct this profound constitutional and democratic injury. However, Rucho prevents parties from directly asserting this harm, at least in federal court. And today’s decision more or less stops parties from trying to attack partisan gerrymanders indirectly through racial gerrymandering claims. After Alexander, parties increasingly have nowhere to turn when they’re targeted by conduct that almost everyone agrees is unlawful and undemocratic.

To be clear, the pre-Alexander situation of racial gerrymandering claims sometimes being repurposed to fight partisan gerrymandering was far from ideal. The right answer would be for courts to recognize racial and partisan gerrymandering claims, thereby allowing racial gerrymandering claims to root out race-related abuses. But Alexander moves us from a second-best to a third-best world: one where partisan gerrymandering can’t be tackled directly or indirectly, and simply becomes invisible as a matter of federal constitutional law.

Politico.

Native Americans are always an important voting bloc in Montana, where they make up 6.5 percent of the population, per U.S. Census data. But this November, their involvement could potentially impact the entire nation.

Control of the Senate may hang on the outcome of the Montana Senate race, where Democratic Sen. Jon Tester is up for reelection in this reliably red state, likely facing off against Republican Tim Sheehy, whom former President Donald Trump has endorsed. Trump won Montana by nearly 17 percentage points in 2020, and Tester won by 3.5 percentage points — or nearly 18,000 votes — in 2018. Montana’s tribes comprise about five percent of the voting bloc, nearly twice the margin by which Tester won his last race.

Native voters are “hugely important to the Democratic base,” says Jim Messina, an Obama White House alum and former adviser to Tester with deep political roots in Montana. Tester ousted Republican Sen. Conrad Burns in 2006 in part by siphoning off some of Burns’ support among Native Americans. “Tester was able to cut into that bloc and really move them towards him,” Messina says.

NYT.

Less than six months out from the presidential contest, leading Republicans, including several of Donald J. Trump’s potential running mates, have refused to commit to accepting the results of the election, signaling that the party may again challenge the outcome if its candidate loses.

In a series of recent interviews, Republican officials and candidates have dodged the question, responded with nonanswers or offered clear falsehoods rather than commit to a notion that was once so uncontroversial that it was rarely discussed before an election.

The evasive answers show how the former president’s refusal to concede his defeat after the 2020 election has ruptured a tenet of American democracy — that candidates are bound by the outcome. Mr. Trump’s fellow Republicans are now emulating his hedging well in advance of any voting.

Reuters.

Meta’s oversight board upheld a decision to remove two Facebook posts calling for Australians to vote multiple times in an indigenous rights referendum, but noted the social media giant had not adequately explained its ban on encouraging voter fraud.

The board, which is funded by Meta (META.O), opens new tab but run independently, said Meta was correct to protect the democratic process by preventing voter fraud when it proactively pulled the posts ahead of the 2023 vote. . . .

The decision comes as Australia’s government plans to introduce penalties for internet platforms which fail to rein in misinformation and disinformation. Last October, Australians voted down a proposal to constitutionally recognise Aboriginal and Torres Strait Island people amid fears that a misinformation campaign was influencing voters.

Nevada Independent. It’s disappointing to see Nevada Democrats fighting to preserve gerrymandering, especially at the state legislative level where there’s no unilateral disarmament rationale for the status quo.

The Nevada Supreme Court on Friday unanimously affirmed a district court ruling that two proposed ballot questions each seeking to establish an independent redistricting commission are legally deficient.

The order found that the measures — identical save for when they would go into effect — were invalid because they would create a new state body (an independent redistricting commission) without establishing a revenue source to pay for it. Each sought to establish an independent, seven-member commission to draw congressional and legislative district maps, thereby removing state lawmakers’ role in the redistricting process. . . .

If supporters refile the ballot initiative, Cosgrove said they’d need to include a revenue source  such as increasing the marijuana tax. However, she said that would likely violate the single-subject rule that ballot petitions are limited to, opening it to a legal challenge or leading to a court battle about how much money was needed to fund the petition. 

The Arizona grand jury that recently indicted 18 people for their roles in former President Donald Trump’s scheme to subvert the 2020 election cast a far wider net than state prosecutors had publicly foreshadowed.

The panel of 16 Arizonans displayed unusual independence from the prosecutors supervising the investigation, according to a rare inside look at the secret proceedings based on interviews with eight people familiar with the probe and documents signed by a top prosecutor.

The grand jury took aggressive steps to haul in witnesses and even brought charges against some who had been told by prosecutors they were not under investigation. It ultimately produced a 58-page indictment last month that charged national and state Republicans — including one of Trump’s current top advisers and several former members of his inner circle — with felonies for their alleged roles in the effort to overturn Joe Biden’s victory in the state. Trump himself was listed as an unindicted co-conspirator.

Politico.

Eighty-four Republicans in seven states falsely claimed to be Donald Trump’s presidential electors in December 2020. Three and a half years later, dozens of them are facing criminal charges that could land them in prison for years.

Dozens of others have not been charged at all.

Even though the fake electors all participated in the same scheme, some have been charged as dangerous criminals while others have been treated as mere dupes. These disparities depend almost entirely on where they live.

In Arizona, Michigan and Nevada, every fake elector is facing felony charges except one, whose charges were dropped in a cooperation deal. Their counterparts in New Mexico, Pennsylvania and Wisconsin aren’t facing any charges. And in Georgia, three fake electors have been charged alongside Donald Trump, while others struck immunity deals.

Washington Post. It’s rare to see candidates being this overt about what they’ll do if they get campaign contributions. Incidents like this should be part of the record justifying any future campaign finance regulation.

Trump’s response stunned several of the executives in the room overlooking the ocean: You all are wealthy enough, he said, that you should raise $1 billion to return me to the White House. At the dinner, he vowed to immediately reverse dozens of President Biden’s environmental rules and policies and stop new ones from being enacted, according to people with knowledge of the meeting, who spoke on the condition of anonymity to describe a private conversation.

Giving $1 billion would be a “deal,” Trump said, because of the taxation and regulation they would avoid thanks to him, according to the people. . . .

Trump vowed at the dinner to immediately end the Biden administration’s freeze on permits for new liquefied natural gas (LNG) exports — a top priority for the executives, according to three people present. “You’ll get it on the first day,” Trump said, according to the recollection of an attendee. . . .

Trump told the executives that he would start auctioning off more leases for oil drilling in the Gulf of Mexico, a priority that several of the executives raised. He railed against wind power, as The Post previously reported. And he said he would reverse the restrictions on drilling in the Alaskan Arctic. . . .

At the dinner,Trump also promised that he would scrap Biden’s “mandate” on electric vehicles — mischaracterizing ambitious rules that the Environmental Protection Agency recently finalized, according to people who attended. . . .

Despite Trump’s huge fundraising ask, oil donors and their allies have yet to donate hundreds of millions to his campaign. They havecontributed more than $6.4 million to Trump’s joint fundraising committee in the first three months of this year, according to an analysis by the advocacy group Climate Power. Oil billionaire Harold Hamm and others are scheduling a fundraiser for Trump later this year, advisers said, where they expect large checks to flow to his bid to return to office.